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A long-running legal battle that could hold the key to opening up the country’s legal market to foreign lawyers is being heard at the Supreme Court. In this matter, many of their City outfits are expected to appear in the Supreme Court as a part of the long-running battle to open up the country’s potentially profitable legal market to foreign firms and their lawyers. However, very recently, the Bar Council of India (BCI) contended before the Supreme Court, thereby appealing a 2012 decision when the Supreme Court reasserted a lower court’s decision in allowing foreign lawyers to visit India on a “fly-in, fly-out” basis, while giving recommendations on non-Indian law matters. The decision was seen by many as a positive step towards the greater liberalization of the country’s legal market, but is now being challenged by the Bar Council of India (BCI).
A major blockade in the progress of the push for a liberalization of India’s restrictive legal market is the pending matter of Bar Council of India v. AK Balaji & Ors. The BCI had asserted that the discussion about the forms in which foreign law firms can operate in India must wait until the case is decided. In the last week of January 2018, foreign firms such as Ashurst; Bird & Bird; Clyde & Co; Eversheds Sutherland; Freshfields Bruckhaus Deringer; Herbert Smith Freehills; and Norton Rose Fulbright will also appear before the court, with Clifford Chance and Linklaters being among top City firms, for the latest round of arguments in a 23-year-old legal roadblock of the country’s legal market liberalization. A Mumbai-based professional organization called Lawyers Collective challenged the foreign firms’ Indian offices before the Bombay High Court, in the year 1995 where the court ruled against the foreign firms. The foreign firms appealed the decision the following year to the Supreme Court, which sent the case back to the Bombay High Court.
Thirteen years later in 2009, the Bombay High Court restated that foreign law firm offices were unlawful. However, the 2009 decision did not talk about the issue of foreign lawyers practicing foreign law in India without a physical office. In 2010, a lawyer named A K Balaji filed another suit challenging nearly 30 foreign firms, including Davis Polk & Wardwell, on their ability to practice any law in India. In 2012, the Madras High Court ruled in favor of the “fly-in, fly-out” arrangement for foreign lawyers to visit clients in India and was affirmed by the Supreme Court, which the BCI soon appealed. The proceedings had stalled until January 2018 hearing. In the meantime, while the A K Balaji decision was being challenged by the BCI, another organization called the Global Indian Lawyers Association filed a petition in 2015 to challenge the 2009 decision by the Bombay High Court calling for a liberalization of the legal market. That case is now pending before the Supreme Court.
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